Duhaime's Law Dictionary


Feme Covert Definition:

French: a married woman.

Related Terms: Feme Sole

Distinguished from a feme sole. Traditionally, the legal rights of a feme sole became her husband's upon her marriage, as she became a feme covert (also spelled femme covert). To contract or sue in tort, the feme covert needed her husband's consent!

In Barber v Barber, Justice Wayne of the United States Supreme Court described the state of the law circa 1852:

"The cases mentioned in the books where a feme covert may sue as a feme sole are: When her husband is banished, or has abjured the realm, or has been transported for felony; where the husband is an alien enemy, and his wife is domiciled in the realm; where the husband is an alien domiciled abroad, and has never been in the realm; or where he has voluntarily abandoned her, and is under a disability to return; so where the husband has deserted the wife in a foreign country, and she goes to England and maintains herself as a feme sole; where the husband, in a foreign State, compels his wife to leave him for another political jurisdiction, and she maintains herself there as a feme sole....

"Except in such cases, a feme covert cannot sue at law, unless it be jointly with her husband, for she is deemed to be under the protection of her husband, and a suit respecting her rights must be with the assent and co-operation of her husband."

In Tatlock, Justice Gow of the Supreme Court of British Columbia used these words to describe the evolution of the law regarding feme covert:

"Before 1882 in terms of property and rights of action, the common law classified a woman as feme sole or feme covert. The latter was a married woman. The common law did not permit the feme covert to possess any property independently of her husband (there were some exceptions). It was not until the English Married Women's Property Act, 1882 that fundamental change began. It provided that any woman marrying thereafter should be entitled to retain all property owned by her at the time of the marriage as her separate property and, whether married before or after 1882, any property acquired by her during the marriage should be held by her as her separate property. It almost, but not quite, conferred upon a married woman the same capacity as that of a feme sole.

"The ecclesiastical divorce a mensa et thoro apparently did not affect the general property rights of either party. The (English Divorce and Matrimonial Causes Act 1857) did. It provided ... that on judicial separation the wife was to be considered a feme sole with respect to after acquired property and ... to be considered a feme sole for the purposes of contract, wrongs and injuries, and suing and being sued."

Historically, and still today in some jurisdictions (such as Sharia/Muslim law), a married woman's had little legal rights. In fact, one 1952 Canadian law put the feme covert on the same standing as the mentally ill:

"If any person who is or shall be entitled to any such action or suit is, or shall be at the time of any such cause of action accrued, within the age of twenty-one years, a feme covert, non compos mentis, or beyond the seas, then such person may bring the same action, so as such person commences the same within such times after coming to or being of full age, ... of sound memory, or returned from beyond the seas, as any other person having no such impediment should, according to the provisions of this Act, had done."1

In the 1869 edition of his Cases and Opinions on Constitutional Law William Forsyth wrote:

"I have read somewhere, but the reference escapes me, of a lady of rank who, being pressed by her creditors, married a convict in prison under sentence of transportation; and having become a femme covert, she was released from her debts and from liability for arrest. She took care, however, not to follow her husband to a penal settlement."

REFERENCES:

  • An Act respecting the Limitation of Personal Actions and Guarantees and Sureties, S.N.L. 1952, Vol. 3, c. 146, §2 (NOTE 1]
  • Barber v Barber, 62 U.S. 582 (1858)
  • Forsyth, William, Cases and Opinions on Constitutional law and various points of English jurisprudence, collected and digested from official documents and other sources, with notes (London: Stevens and Haynes, 1869), page 246, footnote.
  • Tatlock v Tatlock, 71 BCLR (2d) 194 (1992)

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